GUT-C Gabelli Utility Trust

 

As filed with the Securities and Exchange Commission on September 9, 2024

 

Securities Act File No. 333-275448
Investment Company Act File No. 811-09243

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

 

FORM N-2

 

 

(Check Appropriate Box or Boxes)

 

☒ Registration Statement under the Securities Act of 1933
☐ Pre-Effective Amendment No.
☒ Post-Effective Amendment No. 1
and/or
☒ Registration Statement under the Investment Company Act of 1940
☒ Amendment No. 39

 

 

THE GABELLI UTILITY TRUST
(Exact Name of Registrant as Specified in Certificate of Trust)

 

 

One Corporate Center, Rye, New York 10580-1422
(Address of Principal Executive Offices)

 

Registrant’s Telephone Number, Including Area Code: (800) 422-3554

 

John C. Ball
The Gabelli Utility Trust
One Corporate Center
Rye, New York 10580-1422
(914) 921-5100
(Name and Address of Agent for Service)

 

 

Copies to:

Peter Goldstein, Esq. The Gabelli Utility Trust One Corporate Center Rye, New York 10580-1422 (914) 921-5100

P. Jay Spinola, Esq. Bissie K. Bonner, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019-6099 (212) 728-8000

 

Approximate Date of Proposed Public Offering: As soon as practicable after the effective date of this Registration Statement.

 

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box ☐

 

If any securities being registered on this Form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933 (“Securities Act”), other than securities offered in connection with a dividend reinvestment plan, check the following box. ☒

 

If this Form is a registration statement pursuant to General Instruction A.2 or a post-effective amendment thereto, check the following box ☒

 

If this Form is a registration statement pursuant to General Instruction B or a post-effective amendment thereto that will become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box ☐

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction B to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box ☐

 

It is proposed that this filing will become effective (check appropriate box):

 

☐	when declared effective pursuant to Section 8(c) of the Securities Act

 

If appropriate, check the following box:

 

☐	This [post-effective] amendment designates a new effective date for a previously filed [post-effective amendment] [registration statement].

 

☐	This Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, and the Securities Act registration statement number of the earlier effective registration statement for the same offering is: ______.

 

☐	This Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, and the Securities Act registration statement number of the earlier effective registration statement for the same offering is: ______.

 

☒	This Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, and the Securities Act registration statement number of the earlier effective registration statement for the same offering is: 333-275448.

 

Check each box that appropriately characterizes the Registrant:

 

☒	Registered Closed-End Fund (closed-end company that is registered under the Investment Company Act of 1940 (the “Investment Company Act”)).

 

☐	Business Development Company (closed-end company that intends or has elected to be regulated as a business development company under the Investment Company Act.

 

☐	Interval Fund (Registered Closed-End Fund or a Business Development Company that makes periodic repurchase offers under Rule 23c-3 under the Investment Company Act).

 

☒	A.2 Qualified (qualified to register securities pursuant to General Instruction A.2 of this Form).

 

☐	Well-Known Seasoned Issuer (as defined by Rule 405 under the Securities Act).

 

☐	Emerging Growth Company (as defined by Rule 12b-2 under the Securities and Exchange Act of 1934).

 

☐	If an Emerging Growth Company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

☐	New Registrant (registered or regulated under the Investment Company Act for less than 12 calendar months preceding this filing).

 

 

 

EXPLANATORY NOTE

 

 

 

PART C

 

OTHER INFORMATION

 

Item 25. Financial Statements and Exhibits

 

1. Financial Statements

 

	Included in Part A:
	The annual report to the Fund’s shareholders for the fiscal year ended December 31, 2022 (the “2022 Annual Report”) is incorporated by reference.
	The semi-annual report to the Fund’s shareholders for the fiscal period ended June 30, 2023 (the “2023 Semi-Annual Report”) is incorporated by reference.
	Included in Part B:
	Audited financial statements and financial highlights for the fiscal year ended December 31, 2022 and related Report of Independent Registered Public Accounting Firm are incorporated herein by reference to the 2022 Annual Report.
	Audited financial statements and financial highlights for the fiscal period ended June 30, 2023 and related Report of Independent Registered Public Accounting Firm are incorporated herein by reference to the 2023 Semi-Annual Report.

 

2. Exhibits

 

	(a)(1)	Third Amended and Restated Agreement and Declaration of Trust of Registrant is incorporated by reference to Exhibit (a)(1) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-174333 and 811-09243, as filed with the Securities and Exchange Commission on May 19, 2011.
	(a)(2)	Amended and Restated Statement of Preferences with respect to the 5.625% Series A Cumulative Preferred Shares is incorporated by reference to Exhibit (a)(2) to Post-Effective Amendment No. 4 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-174333 and 811-09243, as filed with the Securities and Exchange Commission on March 19, 2013.
	(a)(3)	Second Amended and Restated Statement of Preferences with respect to the Series B Auction Market Preferred Shares is incorporated by reference to Exhibit (a)(3) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 811-09243, as filed with the Securities and Exchange Commission on April 17, 2015.
	(a)(4)	Statement of Preferences with respect to the 5.375% Series C Cumulative Preferred Shares is incorporated by reference to Exhibit (a)(4) to Post-Effective Amendment No. 2 to Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 881-09243, as filed with the Securities and Exchange Commission on May 26, 2016.
	(b)	Second Amended and Restated By-Laws of Registrant is incorporated by reference to Exhibit (b)(1) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-174333 and 811-09243, as filed with the Securities and Exchange Commission on May 19, 2011.
	(c)	Not applicable
	(d)(1)	Form of Registrant’s Common Share Certificate is incorporated by reference to Exhibit (d)(4) to Pre-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-118701 and 811-09243, as filed with the Securities and Exchange Commission on October 14, 2004.

 

 

	(d)(2)	Form of Registrant’s 5.625% Series A Cumulative Preferred Share Certificate is incorporated by reference to Exhibit (d)(1) to Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-105500 and 811-09243, as filed with the Securities and Exchange Commission on July 24, 2003.
	(d)(3)	Form of Registrant’s Series B Auction Market Preferred Share Certificate is incorporated by reference to Exhibit (d)(ii) to Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-105500 and 811-09243, as filed with the Securities and Exchange Commission on July 24, 2003.
	(d)(4)	Form of Subscription Certificate is filed herewith.
	(d)(5)	Form of Notice of Guaranteed Delivery is filed herewith.
	(d)(6)	Form of Instrument of Designation of Rights is filed herewith.
	(e)	Automatic Dividend Reinvestment and Voluntary Cash Purchase Plan of Registrant is incorporated by reference to Exhibit 17(d) to Pre-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-14, File No. 333-72983, as filed with the Securities and Exchange Commission on March 31, 1999.
	(f)	Not applicable
	(g)	Form of Investment Advisory Agreement between Registrant and Gabelli Funds, LLC is incorporated by reference to Exhibit 10 to Pre-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-14, File No. 333-72983, as filed with the Securities and Exchange Commission on March 31, 1999.
	(h)	Not applicable
	(i)	Not applicable
	(j)	Mutual Fund Custody and Services Agreement between Registrant and BNY Mellon is incorporated by reference to Exhibit (j) to Post-Effective Amendment No. 2 to Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 881-09243, as filed with the Securities and Exchange Commission on May 26, 2016.
	(k)(1)	Form of Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-174333 and 811-09243, as filed with the Securities and Exchange Commission on May 19, 2011.
	(k)(1)(i)	Amendment No. 1 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(i) to Post-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-174333 and 811-09243, as filed with the Securities and Exchange Commission on October 18, 2012.
	(k)(1)(ii)	Amendment No. 2 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(ii) to Post-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-174333 and 811-09243, as filed with the Securities and Exchange Commission on October 18, 2012.
	(k)(1)(iii)	Amendment No. 3 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(iii) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 811-09243, as filed with the Securities and Exchange Commission on April 17, 2015.

 

 

	(k)(1)(iv)	Amendment No. 4 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(iv) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 811-09243, as filed with the Securities and Exchange Commission on April 17, 2015.
	(k)(1)(v)	Amendment No. 5 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(v) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 811-09243, as filed with the Securities and Exchange Commission on April 17, 2015.
	(k)(1)(vi)	Amendment No. 6 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(vi) to Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 811-09243, as filed with the Securities and Exchange Commission on April 19, 2016.
	(k)(1)(vii)	Amendment No. 7 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(vii) to Post-Effective Amendment No. 2 to Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 881-09243, as filed with the Securities and Exchange Commission on May 26, 2016.
	(k)(1)(viii)	Amendment No. 8 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(viii) to Post-Effective Amendment No. 2 to Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 881-09243, as filed with the Securities and Exchange Commission on May 26, 2016.
	(k)(1)(ix)	Amendment No. 9 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(ix) to Post-Effective Amendment No. 3 to Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 881-09243, as filed with the Securities and Exchange Commission on March 15, 2018.
	(k)(1)(x)	Amendment No. 10 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(x) to Post-Effective Amendment No. 3 to Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 881-09243, as filed with the Securities and Exchange Commission on March 15, 2018.
	(k)(1)(xi)	Amendment No. 11 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(xi) to Post-Effective Amendment No. 3 to Registrant’s Registration Statement on Form N-2, File Nos. 333-203475 and 881-09243, as filed with the Securities and Exchange Commission on March 15, 2018.
	(k)(1)(xii)	Amendment No. 12 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(xii) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-236449 and 811-09243, as filed with the Securities and Exchange Commission on February 14, 2020.
	(k)(1)(xiii)	Amendment No. 13 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(xiii) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-236449 and 811-09243, as filed with the Securities and Exchange Commission on February 14, 2020.
	(k)(1)(xiv)	Amendment No. 14 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(xiv) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-236449 and 811-09243, as filed with the Securities and Exchange Commission on February 14, 2020.

 

 

	(k)(1)(xv)	Amendment No. 15 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(xv) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-236449 and 811-09243, as filed with the Securities and Exchange Commission on February 14, 2020.
	(k)(1)(xvi)	Amendment No. 16 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(1)(xvi) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-236449 and 811-09243, as filed with the Securities and Exchange Commission on February 14, 2020.
	(k)(1)(xvii)	Amendment No. 17 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (d)(5)(xviii) to The Gabelli Dividend & Income Trust’s Tender Offer Statement on Schedule TO (File No. 005-84324), filed on March 17, 2021.
	(k)(1)(xviii)	Amendment No. 18 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(i)(r) to Post-Effective Amendment No. 1 to The Gabelli Dividend & Income Trust’s Registration Statement on Form N-2, File Nos. 333-259726 and 811-21423, as filed with the Securities and Exchange Commission on October 5, 2021.
	(k)(1)(xix)	Amendment No. 19 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(i)(s) to Post-Effective Amendment No. 1 to The Gabelli Dividend & Income Trust’s Registration Statement on Form N-2, File Nos. 333-259726 and 811-21423, as filed with the Securities and Exchange Commission on October 5, 2021.
	(k)(1)(xx)	Amendment No. 20 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (d)(5)(xxi) to the Registrant’s Tender Offer Statement on Schedule TO (File No. 005-84324), filed on September 6, 2023.
	(k)(1)(xxi)	Amendment No. 21 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (d)(5)(xxii) to the Registrant’s Tender Offer Statement on Schedule TO (File No. 005-84324), filed on September 6, 2023.
	(k)(1)(xxii)	Amendment No. 22 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (d)(5)(xxiii) to the Registrant’s Tender Offer Statement on Schedule TO (File No. 005-84324), filed on September 6, 2023.
	(k)(1)(xxiii)	Amendment No. 23 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (d)(5)(xxiv) to the Registrant’s Tender Offer Statement on Schedule TO (File No. 005-84324), filed on September 6, 2023.
	(k)(1)(xxiv)	Amendment No. 24 to Transfer Agency and Service Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (d)(5)(xxv) to the Registrant’s Tender Offer Statement on Schedule TO (File No. 005-84324), filed on September 6, 2023.
	(k)(2)	Fee and Service Schedule for Stock Transfer Services among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is incorporated by reference to Exhibit (k)(2) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-174333 and 811-09243, as filed with the Securities and Exchange Commission on May 19, 2011.
	(k)(3)	Form of Auction Agency Agreement for the Series B Auction Rate Preferred Shares is incorporated by reference to Exhibit (k)(ii) to Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-105500 and 811-09243, as filed with the Securities and Exchange Commission on July 24, 2003.

 

 

	(k)(4)	Form of Broker-Dealer Agreement for the Series B Auction Rate Preferred Shares is incorporated by reference to Exhibit (k)(iii) to Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-105500 and 811-09243, as filed with the Securities and Exchange Commission on July 24, 2003.
	(k)(5)	Form of DTC Agreement for the Series B Auction Rate Preferred Shares is incorporated by reference to Exhibit (k)(iv) to Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-105500 and 811-09243, as filed with the Securities and Exchange Commission on July 24, 2003.
	(k)(6)	Form of Subscription Agent Agreement among Registrant, Computershare Trust Company, N.A. and Computershare Inc. is filed herewith.
	(k)(7)	Form of Master Engagement Agreement between Registrant and Sodali & Co. is filed herewith.
	(l)(1)	Opinion and Consent of Counsel is incorporated by reference to Exhibit (l)(1) to Pre-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-275448 and 811-09243, as filed with the Securities and Exchange Commission on December 26, 2023.
	(l)(2)	Opinion and Consent of Morris, Nichols, Arsht & Tunnell LLP with respect to the legality of the Common Shares and the Rights is filed herewith.
	(m)	Not applicable
	(n)(1)	Consent of Independent Registered Public Accounting Firm is incorporated by reference to Exhibit (n)(1) to Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-275448 and 811-09243, as filed with the Securities and Exchange Commission on December 28, 2023.
	(n)(2)	Powers of Attorney are incorporated by reference to Exhibit (n)(2) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-275448 and 811-09243, as filed with the Securities and Exchange Commission on November 9, 2023.
	(o)	Not applicable
	(p)	Not applicable
	(q)	Not applicable
	(r)(1)	Code of Ethics of the Investment Adviser and of the Registrant is incorporated by reference to Exhibit (r)(1) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-275448 and 811-09243, as filed with the Securities and Exchange Commission on November 9, 2023.
	(r)(2)	Joint Code of Ethics of the Investment Adviser and of the Registrant for Chief Executive and Senior Financial Officers of the Gabelli Funds is incorporated by reference to Exhibit (r)(2) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-275448 and 811-09243, as filed with the Securities and Exchange Commission on November 9, 2023.
	(s)(1)	Calculation of Filing Fee Tables (Shelf Registration Statement) is incorporated by reference to Exhibit (s) to the Registrant’s Registration Statement on Form N-2, File Nos. 333-275448 and 811-09243, as filed with the Securities and Exchange Commission on November 9, 2023.
	(s)(2)	Calculation of Filing Fee Tables (Shelf Registration Statement) is incorporated by reference to Exhibit (s)(2) to Pre-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-2, File Nos. 333-275448 and 811-09243, as filed with the Securities and Exchange Commission on December 26, 2023.
	(s)(3)	Calculation of Filing Fee Tables (Final Prospectus Dated September 9, 2024) is filed herewith.

 

 

Item 26. Marketing Arrangements

 

The information contained under the heading “Plan of Distribution” on page 40 of the Prospectus is incorporated by reference.

 

Item 27. Other Expenses of Issuance and Distribution

 

The following table sets forth the estimated expenses to be incurred in connection with the offering described in this Registration Statement:

 

SEC registration fees		$	44,280
NYSE listing fees		$	54,365
Printing expenses		$	500,000
Accounting fees		$	80,000
Legal fees		$	655,000
Rating agency fees		$	100,000
Miscellaneous		$	377,355
Total		$	1,811,000

 

Item 28. Persons Controlled by or Under Common Control with Registrant

 

None.

 

Item 29. Number of Holders of Securities as of September 4, 2024:

 

Class of Securities
Common Shares of Beneficial Interest			2,684
Promissory Notes			1
5.375% Series C Cumulative Shares			1

 

Item 30. Indemnification

 

Article IV of the Registrant’s Amended and Restated Declaration of Trust provides as follows:

 

ARTICLE IV

 

LIMITATIONS OF LIABILITY AND INDEMNIFICATION

 

SECTION 4.1. No Personal Liability of Shareholders, Trustees, etc. No Shareholder of the Trust shall be subject in such capacity to any personal liability whatsoever to any Person in connection with Trust Property or the acts, obligations or affairs of the Trust. Shareholders shall have the same limitation of personal liability as is extended to stockholders of a private corporation for profit incorporated under the general corporation law of the State of Delaware. No Trustee or officer of the Trust shall be subject in such capacity to any personal liability whatsoever to any Person, other than the Trust or its Shareholders, in connection with Trust Property or the affairs of the Trust, save only liability to the Trust or its Shareholders arising from bad faith, willful misfeasance, gross negligence or reckless disregard for his duty to such Person; and, subject to the foregoing exception, all such Persons shall look solely to the Trust Property for satisfaction of claims of any nature arising in connection with the affairs of the Trust. If any Shareholder, Trustee or officer, as such, of the Trust, is made a party to any suit or proceeding to enforce any such liability, subject to the foregoing exception, he shall not, on account thereof, be held to any personal liability.

 

 

SECTION 4.2. Mandatory Indemnification.

 

(a) The Trust shall indemnify the Trustees and officers of the Trust (each such person being an “indemnitee”) against any liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and reasonable counsel fees reasonably incurred by such indemnitee in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or investigative body in which he may be or may have been involved as a party or otherwise (other than, except as authorized by the Trustees, as the plaintiff or complainant) or with which he may be or may have been threatened, while acting in any capacity set forth above in this Section 4.2 by reason of his having acted in any such capacity, except with respect to any matter as to which he shall not have acted in good faith in the reasonable belief that his action was in the best interest of the Trust or, in the case of any criminal proceeding, as to which he shall have had reasonable cause to believe that the conduct was unlawful, provided, however, that no indemnitee shall be indemnified hereunder against any liability to any person or any expense of such indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith, (iii) gross negligence (negligence in the case of Affiliated Indemnitees), or (iv) reckless disregard of the duties involved in the conduct of his position (the conduct referred to in such clauses (i) through (iv) being sometimes referred to herein as “disabling conduct”). Notwithstanding the foregoing, with respect to any action, suit or other proceeding voluntarily prosecuted by any indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such indemnitee was authorized by a majority of the Trustees.

 

(b) Notwithstanding the foregoing, no indemnification shall be made hereunder unless there has been a determination (1) by a final decision on the merits by a court or other body of competent jurisdiction before whom the issue of entitlement to indemnification hereunder was brought that such indemnitee is entitled to indemnification hereunder or, (2) in the absence of such a decision, by (i) a majority vote of a quorum of those Trustees who are neither Interested Persons of the Trust nor parties to the proceeding (“Disinterested Non-Party Trustees”), that the indemnitee is entitled to indemnification hereunder, or (ii) if such quorum is not obtainable or even if obtainable, if such majority so directs, independent legal counsel in a written opinion conclude that the indemnitee should be entitled to indemnification hereunder. All determinations to make advance payments in connection with the expense of defending any proceeding shall be authorized and made in accordance with the immediately succeeding paragraph (c) below.

 

(c) The Trust shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if the Trust receives a written affirmation by the indemnitee of the indemnitee’s good faith belief that the standards of conduct necessary for indemnification have been met and a written undertaking to reimburse the Trust unless it is subsequently determined that he is entitled to such indemnification and if a majority of the Trustees determine that the applicable standards of conduct necessary for indemnification appear to have been met. In addition, at least one of the following conditions must be met: (1) the indemnitee shall provide adequate security for his undertaking, (2) the Trust shall be insured against losses arising by reason of any lawful advances, or (3) a majority of a quorum of the Disinterested Non-Party Trustees, or if a majority vote of such quorum so direct, independent legal counsel in a written opinion, shall conclude, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is substantial reason to believe that the indemnitee ultimately will be found entitled to indemnification.

 

(d) The rights accruing to any indemnitee under these provisions shall not exclude any other right to which he may be lawfully entitled.

 

(e) Notwithstanding the foregoing, subject to any limitations provided by the 1940 Act and this Declaration, the Trust shall have the power and authority to indemnify Persons providing services to the Trust to the full extent provided by law as if the Trust were a corporation organized under the Delaware General Corporation Law provided that such indemnification has been approved by a majority of the Trustees.

 

SECTION 4.3. No Duty of Investigation; Notice in Trust Instruments, etc. No purchaser, lender, transfer agent or other person dealing with the Trustees or with any officer, employee or agent of the Trust shall be bound to make any inquiry concerning the validity of any transaction purporting to be made by the Trustees or by said officer, employee or agent or be liable for the application of money or property paid, loaned, or delivered to or on the order of the Trustees or of said officer, employee or agent. Every obligation, contract, undertaking, instrument, certificate, Share, other security of the Trust, and every other act or thing whatsoever executed in connection with the Trust shall be conclusively taken to have been executed or done by the executors thereof only in their capacity as Trustees under this Declaration or in their capacity as officers, employees or agents of the Trust. The Trustees may maintain insurance for the protection of the Trust Property, its Shareholders, Trustees, officers, employees and agents in such amount as the Trustees shall deem adequate to cover possible liability, and such other insurance as the Trustees in their sole judgment shall deem advisable or is required by the 1940 Act.

 

 

SECTION 4.4. Reliance on Experts, etc. Each Trustee and officer or employee of the Trust shall, in the performance of its duties, be fully and completely justified and protected with regard to any act or any failure to act resulting from reliance in good faith upon the books of account or other records of the Trust, upon an opinion of counsel, or upon reports made to the Trust by any of the Trust’s officers or employees or by any advisor, administrator, manager, distributor, selected dealer, accountant, appraiser or other expert or consultant selected with reasonable care by the Trustees, officers or employees of the Trust, regardless of whether such counsel or other person may also be a Trustee.

 

Section 5 of the Registrant’s Investment Advisory Agreement provides as follows:

 

5. Standard of Care

 

The Adviser shall exercise its best judgment in rendering the services described in paragraphs 2 and 3 above. The Adviser shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters of which this Agreement relates, provided that nothing in this paragraph shall be deemed to protect or purport to protect the Adviser against any liability to the Fund or to its shareholders to which the Adviser would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or by reason of the Adviser’s reckless disregard of its obligations and duties under this Agreement.

 

Item 31. Business and Other Connections of Investment Adviser

 

The Investment Adviser, a limited liability company organized under the laws of the State of New York, acts as investment adviser to the Registrant. The Registrant is fulfilling the requirement of this Item 31 to provide a list of the officers and directors of the Investment Adviser, together with information as to any other business, profession, vocation or employment of a substantial nature engaged in by the Investment Adviser or those officers and directors during the past two years, by incorporating by reference the information contained in the Form ADV of the Investment Adviser filed with the SEC pursuant to the 1940 Act (Commission File No. 801-37706).

 

Item 32. Location of Accounts and Records

 

Omitted pursuant to the Instruction of Item 32 of Form N-2.

 

Item 33. Management Services

 

Not applicable.

 

Item 34. Undertakings

 

1. Not applicable.

 

2. Not applicable.

 

3. Registrant undertakes:

 

(a) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(1) to include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(2) to reflect in the prospectus any facts or events after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

 

(3) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.

 

(4) if (i) it determines to conduct one or more offerings of the Fund’s common shares (including rights to purchase its common shares) at a price below its net asset value per common share at the date the offering is commenced, and (ii) such offering or offerings will result in greater than a 15% dilution to the Fund’s net asset value per common share.

 

(b) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof;

 

(c) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and

 

(d) that, for the purpose of determining liability under the Securities Act to any purchaser:

 

(1) if the Registrant is relying on Rule 430B:

 

(A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

 

(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (x), or (xi) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or

 

(2) if the Registrant is relying on Rule 430C: each prospectus filed pursuant to Rule 424(b) under the Securities Act as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

(e) that for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of securities:

 

 

The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser:

 

(1) any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424 under the Securities Act;

 

(2) free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrants;

 

(3) the portion of any other free writing prospectus or advertisement pursuant to Rule 482 under the Securities Act relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and

 

(4) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.

 

4. Registrant undertakes:

 

(a) that, for the purpose of determining any liability under the Securities Act the information omitted from the form of prospectus filed as part of the Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant under Rule 424(b)(1) under the Securities Act will be deemed to be a part of the Registration Statement as of the time it was declared effective.

 

(b) that, for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus will be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of the securities at that time will be deemed to be the initial bona fide offering thereof.

 

5. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference into the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

6. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

7. Registrant undertakes to send by first class mail or other means designed to ensure equally prompt delivery, within two business days of receipt of a written or oral request, any prospectus or Statement of Additional Information constituting Part B of this Registration Statement.

 

 

SIGNATURES

 

As required by the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, the Registrant has duly caused this Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on the 9th day of September, 2024.

 

	THE GABELLI UTILITY TRUST
	By:	/s/ John C. Ball
		Name:	John C. Ball
		Title:	President and Principal Executive Officer

 

As required by the Securities Act of 1933, as amended, this Form N-2 has been signed below by the following persons in the capacities set forth below on the 9th day of September, 2024.

 

NAME		TITLE
*
Mario J. Gabelli		Trustee
*
John D. Gabelli		Trustee
*
John Birch		Trustee
*
Elizabeth C. Bogan		Trustee
*
James P. Conn		Trustee
*
Vincent D. Enright		Trustee
*
Frank J. Fahrenkopf, Jr.		Trustee
*
Michael J. Ferrantino		Trustee
*
Leslie F. Foley		Trustee
*
Michael J. Melarkey		Trustee
*
Robert J. Morrissey		Trustee
*
Salvatore J. Zizza		Trustee
/s/ John C. Ball
John C. Ball		President, Treasurer and Principal Financial and Accounting Officer
/s/ John C. Ball
John C. Ball		Attorney-in-Fact

 

*

Pursuant to a Power of Attorney

 

 

EXHIBIT INDEX

 

Exhibit Number		Description
(d)(4)		Form of Subscription Certificate
(d)(5)		Form of Notice of Guaranteed Delivery
(d)(6)		Form of Instrument of Designation of Rights
(k)(6)		Form of Subscription Agent Agreement
(k)(7)		Form of Master Engagement Agreement
(l)(2)		Opinion and Consent of Morris, Nichols, Arsht & Tunnell LLP with respect to the legality of the Common Shares and the Rights
(s)(3)		Calculation of Filing Fee Tables (Final Prospectus Dated September 9, 2024)

 

 

Exhibit (d)(4)

 

 

NNNNNNNNN NNNNNNNNNNNN + THE GABELLI UTILITY TRUST 150 Royall Street Suite V Canton Massachusetts 02021 For information call the Fund 1 800 GABELLI (422 3554) MR A SAMPLE DESIGNATION (IF ANY) ADD 1NNNNNN ADD 2 ADD 3 ADD 4 ADD 5 ADD 6C 1234567890J N T NNNNNN Account:12345678901234 Subscription Rights: 12345678901234 THE GABELLI UTILITY TRUST SUBSCRIPTION RIGHTS CERTIFICATE FOR COMMON SHARES TO EXERCISE YOUR RIGHTS If you wish to exercise your rights, you must submit your instructions in the following way: Option 1) Mail – Complete the instructions, sign and return this Letter of Transmittal in the envelope provided. Option 2) Internet – Visit the Web Platform at www.computersharecas.com/gabellirights and follow the instructions on the site. Account Code XXXXXXXXXX Control Code XXXXXXXXXX THIS SUBSCRIPTION RIGHTS OFFERING EXPIRES ON OCTOBER 21, 2024 IN ORDER TO EXERCISE YOUR RIGHTS, YOU MUST COMPLETE BOTH SIDES OF THE CARD. As the registered owner of this Subscription Certificate, you or your assignee are entitled to subscribe for a number of common shares, par value $0.001 (the “Common Shares”), of The Gabelli Utility Trust (the “Fund”) pursuant to the primary subscription privilege (the “Primary Subscription Right”) and upon the terms and conditions and at the Subscription Price for each Common Share specified in the prospectus supplement relating thereto (the “Prospectus Supplement”). Under the Over-Subscription Privilege, additional Common Shares may be purchased by a Rights holder if such Common Shares are available and the holder’s Primary Subscription Rights have been exercised to the fullest extent possible. The Board of Directors has the right, in its absolute discretion, to eliminate the Over-Subscription Privilege with respect to the Common Shares available for purchase pursuant to the Over-Subscription Privilege (the “Over-Subscription Shares”) if it considers doing so to be in the best interest of the Fund. The Board of Directors may make that determination at any time, without prior notice to Rights holders or others, up to and including the fifth day following the Expiration Date. THE SUBSCRIPTION RIGHT IS TRANSFERABLE Payment must be in United States dollars, whereby only checks drawn on a bank located in the continental United States and made payable to The Gabelli Utility Trust will be accepted. Please reference your rights card control number on your check. The registered owner of this Subscription Certificate named above, or assigns, is entitled to the number of Rights shown below to subscribe for Common Shares of The Gabelli Utility Trust in the ratio of one Common Share for each five (5) Rights, pursuant to the Primary Subscription Right and upon the terms and conditions and at the price for each Common Share specified in the Prospectus Supplement. Registered owners of the Fund’s Common Shares will receive Common Shares purchased pursuant to the Primary Subscription Right and the Over-Subscription Privilege via an uncertificated share credit to their existing account(s). Any refund in connection with an over-subscription will be delivered as soon as practicable after the Expiration Date and after all oversubscription allocations, if any, have been effected. This Subscription Certificate may be transferred in the same manner and with the same effect as in the case of a negotiable instrument payable to specific persons, by duly completing and signing the assignment on the reverse side hereof. This Subscription Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. To subscribe pursuant to the Primary Subscription Right, five (5) Rights and the Subscription Price are required for each Common Share. To subscribe for additional Common Shares pursuant to the Over-Subscription Privilege, the Subscription Price is required for each Common Share, subject to the terms of the Over-Subscription Privilege as described in the Prospectus Supplement. Payment of $5.00 per Common Share must accompany the Subscription Certificate. ADDITIONAL INFORMATION For a more complete description of the terms and conditions of this Rights Offering, please refer to the Fund’s Prospectus Supplement. Additional copies of the Prospectus Supplement are available upon request from The Gabelli Utility Trust, at 914-921-5070. You are encouraged to contact The Gabelli Utility Trust if you have any questions concerning this Rights Offering. Holder ID COY Class Rights Qty Issued Rights Cert # 123456789 XXXX Subscription Rights XXX.XXXXXX 12345678 Signature of Owner and U.S. Person for Tax Certification Signature of Co-Owner (if more than one registered holder listed) Date (mm/dd/yyyy)

 

 

C. Total Amount Enclosed: . To subscribe for Common Shares you must present to Computershare Trust Company, N.A. (the “Subscription Agent” or “Computershare”), prior to 5:00 p.m., Eastern time, on the Expiration Date of October 21, 2024 (unless extended), either: (a) a properly completed and executed Subscription Certificate and payment as described herein for the number of Common Shares subscribed for under the Primary Subscription Right (and, if you are a Record Date Shareholder electing to exercise the Over-Subscription Privilege, pursuant to the terms of the Over-Subscription Privilege); or (b) a notice of guaranteed delivery (the “Notice of Guaranteed Delivery”) guaranteeing delivery of a properly completed and executed Subscription Certificate. You will have no right to rescind a purchase after the Subscription Agent has received a properly completed and executed Subscription Certificate and payment by means of a check. To subscribe for your primary Common Shares, please complete line “A” on the card below. If you are not subscribing for your full Primary Subscription Right, check box “D” below, and we will attempt to sell any remaining unexercised Rights. There can be no assurance that unexercised Rights will be sold, or regarding the costs or proceeds that will result from any completed sales. To subscribe for any Over-Subscription Shares, please complete line “B” below. Please Note: Only Record Date Shareholders who have exercised their Primary Subscription Right in full may apply for Common Shares pursuant to the Over-Subscription Privilege. Payment for Shares: Full payment for Common Shares purchased pursuant to both the Primary Subscription Right and the Over-Subscription Privilege must accompany this Subscription Certificate or Notice of Guaranteed Delivery. Please reference your rights card control number on your check or Notice of Guaranteed Delivery. If the aggregate Subscription Price paid by a Record Date Shareholder is insufficient to purchase the number of Common Shares that the holder indicates are being subscribed for, or if a Record Date Shareholder does not specify the number of Common Shares to be purchased, then the Record Date Shareholder will be deemed to have exercised first the Primary Subscription Right (if not already fully exercised), and second the Over-Subscription Privilege to the full extent of the payment rendered. If the aggregate Subscription Price paid by a Record Date Shareholder exceeds the amount necessary to purchase the number of Common Shares for which the Record Date Shareholder has indicated an intention to subscribe, then the Record Date Shareholder will be deemed to have exercised first the Primary Subscription Right (if not already fully exercised), and second the Over-Subscription Privilege to the full extent of the excess payment tendered. FOR A MORE COMPLETE DESCRIPTION OF THE TERMS AND CONDITIONS OF THIS RIGHTS OFFERING, PLEASE REFER TO THE FUND’S PROSPECTUS SUPPLEMENT, WHICH IS INCORPORATED HEREIN BY REFERENCE. COPIES OF THE PROSPECTUS SUPPLEMENT ARE AVAILABLE UPON REQUEST FROM THE GABELLI UTILITY TRUST, BY CALLING 914-921-5070 OR TOLL FREE AT 800-GABELLI (800-422-3554). Overnight or trackable delivery or electronic submission is encouraged to insure timely delivery. Please complete all applicable information and return to the Subscription Agent: COMPUTERSHARE TRUST COMPANY, N.A. By First Class Mail:By Registered, Certified or Express Mail, or Overnight Courier: ComputershareComputershare c/o Voluntary Corporate Actionsc/o Voluntary Corporate Actions P.O. Box 43011150 Royall Street, Suite V Providence, RI 02940-3011Canton, MA 02021 Delivery of this Subscription Rights Certificate to an address other than as set forth above does not constitute a valid delivery. A. Exercise of Primary Subscription Rights (5 Rights = 1 share) $5.00 per share$_ (no. of shares)(Subscription Price)(Cost for PrimarySubscription Sharespayable in United B. Exercise Over-Subscription Privilege* States Dollars) x$5.00 per share=$(no. of shares)(Subscription Price)(Cost for Over-Subscription Sharespayable in UnitedStates Dollars) The Over-Subscription Privilege may only be exercised if the Primary Subscription Right is exercised in full, and may only be exercised by Record Date Shareholders as described in the Prospectus Supplement. Over-subscriptions may not be accepted by the Fund and are subject to pro rata reductions. ₌$ __________________ (Cost for Total Subscription Shares payable in United States Dollars) SECTION 1. TO SUBSCRIBE: I acknowledge that I have received the Prospectus Supplement for the Rights Offering and I hereby irrevocably subscribe for the number of Common Shares indicated as the total of A and B hereon upon the terms and conditions specified in the Prospectus Supplement and incorporated by reference herein, receipt of which is acknowledged. I hereby agree that if I fail to pay in full for the Common Shares for which I have subscribed, the Fund may exercise any of the remedies provided for herein or in the Prospectus Supplement. TO SELL: If I have checked the box on line D, I authorize the sale of Rights by the Subscription Agent according to the procedures described in the Prospectus Supplement. Daytime telephone number: _______________________________________________ Evening telephone number: _______________________________________________ Email address: _________________________________________________________ Sell any Unexercised Remaining Rights □ (Please sign form on front) In order to sell your Rights this card must be received by October 14 2024. Deliver a certificate representing _______________________________________ Unexercised Rights to the Assignee at the address in Section 1 Transfer ____________________________________________________________ Rights to the Transferee designated in Section 2 SECTION 2. TO TRANSFER RIGHTS: (Per Line F): For value received, __________ of the Rights represented by this Form of Exercise, Sale or Transfer are assigned to: _____________________________________________________________________ Print full name of Assignee and Social Security Number _____________________________________________________________________ Print Full Address _____________________________________________________________________ Signature(s) of Assignor(s) The signature(s) on this Form of Exercise, Sale or Transfer must correspond with the name(s) of the registered holder(s) exactly as it appears on the face of the Subscription Rights Certificate without any alteration or change whatsoever. In the case of joint registered holders, each person must sign this Form of Exercise, Sale or Transfer in accordance with the foregoing. If you sign this Form of Exercise, Sale or Transfer in your capacity as a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or other fiduciary or representative, you must indicate the capacity in which you are signing when you sign and, if requested by the Subscription Agent in its sole and absolute discretion, you must present to the Subscription Agent satisfactory evidence of your authority to sign in that capacity. If you wish to transfer your Rights, then your signature must be guaranteed by an Eligible Guarantor Institution, as that term is defined in Rule 17Ad-15 of the Securities Exchange Act of 1934, as amended, which may include: (a) a commercial bank or trust company; (b) a member firm of a domestic stock exchange; or (c) a savings bank or credit union. _____________________________________________________________________ Signature (name of bank or firm): _____________________________________________________________________ Guaranteed by (signature/title): DELIVERY OF THIS FORM OF EXERCISE, SALE OR TRANSFER TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.

 

Exhibit (d)(5)

 

Notice of Guaranteed Delivery For

Common Shares of

 

The Gabelli Utility Trust

 

Subscribed for Via Primary Subscription and

the Over-Subscription Privilege

 

As set forth in the Prospectus Supplement, dated September 9, 2024, and the accompanying Prospectus, dated December 28, 2023 (collectively, the “Prospectus”), for this offering, this form or one substantially equivalent hereto may be used as a means of effecting subscription and payment for all of the Fund’s common shares, par value $0.001 per share (the “Common Shares”), subscribed for via the primary subscription and the over-subscription privilege. Payment must be made in United States dollars, whereby only checks drawn on a bank located in the continental United States and made payable to The Gabelli Utility Trust will be accepted. Such form may be delivered by email, first class mail, express mail or overnight courier to the Subscription Agent and must be received prior to 5:00 p.m., Eastern Time, on October 21, 2024, as such date may be extended from time to time (the “Expiration Date”). The terms and conditions of the offering set forth in the Prospectus are incorporated by reference herein. Capitalized terms used and not otherwise defined herein have the meaning attributed to them in the Prospectus.

 

THE SUBSCRIPTION AGENT IS:

 

Computershare Trust Company, N.A.

 

BY FIRST CLASS MAIL:		BY EXPRESS MAIL OR OVERNIGHT COURIER:		VIA EMAIL:
The Gabelli Utility Trust c/o Computershare Trust Company, N.A. Attn: Volunteer Corporate Actions: COY GUT P.O. Box 43011 Providence, RI 02940-3011		The Gabelli Utility Trust c/o Computershare Trust Company, N.A. Attn: Volunteer Corporate Actions: COY GUT 150 Royall Street, Suite V Canton, Massachusetts 02021		canoticeofguarantee@ computershare.com   *This email address can only be used for delivery of this Notice of Guaranteed Delivery.*

 

DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OTHER THAN AS SET FORTH ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY.

 

The New York Stock Exchange member firm or bank or trust company that completes this form must communicate this guarantee and the number of Common Shares subscribed for in connection with this guarantee (separately disclosed as to the primary subscription and the over-subscription privilege) to the Subscription Agent and must deliver this Notice of Guaranteed Delivery, to the Subscription Agent, prior to 5:00 p.m. Eastern Time, on the Expiration Date, guaranteeing delivery of a properly completed and signed Subscription Certificate (which certificate must then be delivered to the Subscription Agent no later than the close of business of the second Business Day after the Expiration Date). Failure to do so will result in a forfeiture of the Rights. Payment of the full Subscription Price for the Common Shares subscribed for must accompany this Notice of Guaranteed Delivery.

 

GUARANTEE

 

The undersigned, a member firm of the New York Stock Exchange or a bank or trust company having an office or correspondent in the United States, guarantees delivery to the Subscription Agent by no later than 5:00 p.m., Eastern Time, on the first Business Day after the Expiration Date of a properly completed and executed Subscription Certificate, as subscription for such Common Shares as indicated herein or in the Subscription Certificate. Participants should notify the Depositary prior to covering through the submission of a physical security directly to the Depositary based on a guaranteed delivery that was submitted via DTC’s PTOP platform.

 

 

BROKER ASSIGNED CONTROL #

 

THE GABELLI UTILITY TRUST

 

1.	Primary Subscription		Number of Rights to be exercised		Number of primary Common Shares requested for which you are guaranteeing delivery of Rights		Payment to be made in connection with primary Common Shares
			Rights ____________________		Common Shares ____________________		$ ____________________
2.	Over-Subscription		Not applicable		Number of over-subscription Common Shares requested pursuant to the over-subscription privilege		Payment to be made in connection with over-subscription Common Shares
					Common Shares ____________________		$ ____________________
3.	Totals		Total Number of Rights Exercised		Total number of Common Shares subscribed for and/or requested
			Rights ____________________		Common Shares ____________________		$ ____________________
							Total Payment

 

Method of delivery (circle one):

 

A.

Through DTC

 

B.

Direct to Computershare Trust Company, N.A., as Subscription Agent.

 

Please reference below the registration of the Rights to be delivered.

 

 

 

PLEASE ASSIGN A UNIQUE CONTROL NUMBER FOR EACH GUARANTEE SUBMITTED. This number needs to be referenced on any direct delivery of Rights or any delivery through DTC.

 

Name of Firm
			Authorized Signature

 

DTC Participant Number		Title
Address		Name (Please Type or Print)
Zip Code		Phone Number
Contact Name		Date

 

 

BENEFICIAL OWNER LISTING CERTIFICATION

The Gabelli Utility Trust Rights Offering

 

The undersigned, a bank, broker or other nominee holder of Rights (“Rights”) to purchase common shares, $0.001 par value per share (“Common Shares”), of The Gabelli Utility Trust (the “Fund”) pursuant to the rights offering (the “Offer”) described and provided for in the Fund’s Prospectus Supplement, dated September 9, 2024, and the accompanying Prospectus, dated December 28, 2023 (collectively the “Prospectus”), hereby certifies to the Fund and to Computershare Trust Company, N.A., as Subscription Agent for such Offer, that for each numbered line filled in below, the undersigned has exercised, on behalf of the beneficial owner thereof (which may be the undersigned), the number of Rights specified on such line pursuant to the primary subscription (as specified in the Prospectus) and such beneficial owner wishes to subscribe for the purchase of additional Common Shares pursuant to the over-subscription privilege (as specified in the Prospectus), in the amount set forth in the third column of such line.

 

	Number of Record Date Common Shares Owned		NUMBER OF RIGHTS exercised pursuant to the Primary Subscription		NUMBER OF COMMON SHARES requested pursuant to the Over-Subscription Privilege
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

 

Name of Nominee Holder

 

By:
Name:
Title:

Dated:

, 2024

 

Provide the following information, if applicable:

 

Depository Trust Corporation (“DTC”) Participant Number

 

		Name of Broker
DTC Primary Subscription Confirmation Number(s)		Address

 

 

Exhibit (d)(6)

 

THE GABELLI UTILITY TRUST

 

INSTRUMENT OF DESIGNATION OF RIGHTS

 

The Gabelli Utility Trust, a Delaware statutory trust (the “Trust”), acting at the direction of the Board of Trustees of the Trust does hereby execute this Instrument of Designation in order to evidence the establishment and designation of 75,981,965 transferrable subscription rights (each a “Right” and collectively the “Rights”). The Rights will entitle common shareholders of the Trust to subscribe for new common shares of beneficial interests in the Trust. Five Rights will be required to purchase one common share.

 

1. Rights, Preferences and Characteristics. The issuance of the Rights were authorized pursuant to resolutions (the “Resolutions”) adopted by the Board Trustees of the Trust at a meeting duly noticed and held on May 15, 2024, and resolutions adopted by the members of the Pricing Committee of the Trust, at a meeting duly noticed and held on August 22, 2024. The Rights shall have the terms, rights, and characteristics described in the Resolutions and the Trust’s then currently effective registration statement under the Securities Act of 1933, as amended, relating to the Rights.

 

2. Authorization of Officers. The officers of the Trust have been authorized and directed by the Trustees of the Trust to take or cause to be taken any and all actions, to execute and deliver any and all certificates, instructions, requests or other instruments, make such payments and to do any and all things that in their discretion may be necessary or advisable to effect the matters referenced herein.

 

3. Incorporation of Defined Terms. Capitalized terms which are not defined herein shall have the meaning ascribed to those terms in the Agreement and Declaration of Trust of the Trust.

 

4. Governing Law. The Rights shall be governed by and construed in accordance with the laws of the State of Delaware.

 

5. Beneficiaries. The holders of the Rights shall be beneficiaries of this Instrument of Designation and entitled to enforce the terms hereof.

 

 

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, the undersigned has executed this Instrument of Designation of Rights this 9^th day of September, 2024.

 

	THE GABELLI UTILITY TRUST
	By:	/s/ John C. Ball
	Name:	John C. Ball
	Title:	President and Principal Executive Officer

 

 

[Signature Page to Instrument of Designation of Rights]

 

 

Exhibit (k)(6)

 

 

 

 

 

 

 

 

 

 

 

Subscription Agent Agreement

Between

Gabelli Utility Trust

and

Computershare Trust Company, N.A.,

Computershare Inc.

 

 

 

 

 

 

 

 

 

 

 

THIS SUBSCRIPTION AGENT AGREEMENT (the “Agreement”) is entered into as of this 27^th day of August 2024 (the “Effective Date”) by and among Gabelli Utility Trust, a company organized and existing under the laws of the State of Delaware (the "Company"), Computershare Inc. (“Computershare”) a Delaware corporation and its fully owned subsidiary Computershare Trust Company, N.A., a national banking association (the “Trust Company” and together with Computershare, the “Agent”).

 

SUBSCRIPTION AGENT SERVICES

 

1. Appointment

 

1.1 Company is making an offer (the “Subscription Offer”) to issue to holders of record of its outstanding shares of common stock, par value $0.001 per share (the “Common Stock”), at the close of business on September 9, 2024 (the “Record Date”), the right to subscribe for and purchase (each such right, a “Right”, and collectively, the “Rights”) shares of common stock (the “Additional Common Stock”) at a purchase price of $5.00 per share of the Additional Common Stock (the “Subscription Price”), payable as described on the Subscription Form (as defined below) or any web site established for purposes of effectuating the Offer. Agent agrees to establish the offer web site, which shall be a dedicated event website for eligible Stockholders to securely sign in, review transactional / Offer materials, make elections, or enter instructions (collectively, “Electronic Instructions”) in connection with the Subscription Offer (an “Offer Web Site”), which together, as they may be amended from time to time, constitute the Subscription Offer, sent to eligible shareholders, upon the terms and conditions set forth therein. The term “Subscribed” shall mean submitted for purchase from Company by a stockholder in accordance with the terms of the Subscription Offer, and the term “Subscription(s)” shall mean any such submission. Company hereby appoints Agent to act as subscription agent in connection with the Subscription Offer and Agent hereby accepts such appointment in accordance with and subject to the terms and conditions of this Agreement.

 

1.2 The Subscription Offer will expire at 5:00pm, Eastern Time, on October 21, 2024 (the “Expiration Time”), unless Company shall have extended the period of time for which the Subscription Offer is open, in which event the term “Expiration Time” shall mean the latest time and date at which the Subscription Offer, as so extended by Company from time to time, shall expire.

 

1.3 Company filed a registration statement relating to the Additional Common Stock with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “1933 Act”), on December 28, 2023, and such registration statement was declared effective on December 28, 2023. The terms of the Additional Common Stock are more fully described in the prospectus forming a part of the registration statement as it was declared effective. All terms used and not defined herein shall have the same meaning(s) as in the prospectus.

 

1.4 Promptly after the Record Date, Company will furnish Agent with, or will instruct Agent, in its capacity as transfer agent for Company, to prepare, a certified list in a format acceptable to Agent of holders of record of the Common Stock at the Record Date, including each such holder’s name, address, taxpayer identification number (“TIN”), share amount with applicable tax lot detail, any certificate detail and information regarding any applicable account stops or blocks (the “Record Stockholders List”).

 

1.5 Client will promptly review and approve the Offer Web Site in order to launch concurrently with the Record Date.

 

1.6 No later than the earlier of (i) forty-five (45) days after the Record Date or (ii) January 15 of the year following the year in which the Record Date occurs, Company shall deliver to Agent written direction on the adjustment of cost basis for covered by IRS cost basis reporting requirements securities that arise from or are affected by the Subscription Offer in accordance with current Internal Revenue Service regulations (see the Tax Instruction/Cost Basis Information Letter attached hereto as Exhibit A for additional information).

 

 

2. Subscription of Rights

 

2.1 The Rights entitle the holders to subscribe, upon payment of the Subscription Price, for shares of the Additional Common Stock at the rate of one (1) share(s) for each five (5) Rights (the “Basic Subscription Privilege”). No fractional Rights will be issued, but the Subscription Offer includes a step-up privilege entitling the holder of fewer than five (5) Rights to subscribe for and pay the Subscription Price for one full share of the Common Stock.

 

2.2 If subscribing shareholders who exercise their Rights in full are entitled to exercise an oversubscription right, then Company shall provide Agent with instructions regarding the allocation to such shareholders of the Additional Common Stock after the initial allocation thereof.

 

2.3 Except as otherwise indicated to Agent by Company in writing, all of the Additional Common Stock delivered hereunder upon the exercise of the Rights will be delivered free of restrictive legends. Company shall, if applicable, inform Agent as soon as possible in advance as to whether any Additional Common Stock issued hereunder is to be issued with restrictive legend(s) and, if so, Company shall provide the appropriate legend(s) and a list identifying the affected shareholders, certificate numbers (if applicable) and share amounts for such affected shareholders.

 

3. Duties of Subscription Agent

 

3.1 Agent shall issue the Rights in accordance with this Agreement in the names of the holders of the Common Stock of record on the Record Date, keep such records as are necessary for the purpose of recording such issuance(s), and furnish a copy of such records to Company.

 

3.2 Promptly after Agent receives the Record Stockholders List, Agent shall:

 

(a)

deliver or cause to be delivered, either by email or by first class mail, as the company shall instruct, the following:

 

(i)

if by first class mail, then to each holder of the Common Stock of record on the Record Date whose address of record is within the United States of America and Canada with no valid email address on file, (A) a subscription form with respect to the Rights to which such stockholder is entitled under the Subscription Offer (the “Subscription Form”), (B) a copy of the prospectus and (C) a return envelope addressed to Agent.

 

(ii)

If by email, as directed by Company, then to each holder of record of the Outstanding Stock on the Record Date with a valid email address, access information and the dedicated web URL of the Offer Website allowing such holders to submit instructions to participate in the Subscription Offer as well as download and review a subscription form with respect to the Rights to which such stockholder is entitled under the Subscription Offer (the “Subscription Form”) a copy of the information statement or prospectus and

 

 

(b)

At the direction of Company, deliver or cause to be delivered, or send via first class mail or email, as the Company shall instruct, to each holder of record of the Common Stock on the Record Date whose address of record is outside the United States of America and Canada, or is an A.P.O. or a F.P.O. address, a copy of the prospectus. Agent shall refrain from delivering the Subscription Form to any holder of record of the Common Stock on the Record Date whose address of record is outside the United States of America and Canada, or is an A.P.O. or a F.P.O. address, and hold such Subscription Form for the account of such stockholder subject to such stockholder making satisfactory arrangements with Agent for the exercise or other disposition of the Rights described therein, and effect the exercise, sale or delivery of such Rights in accordance with the terms of this Agreement if notice of such arrangements is received at or before 11:00 a.m., Eastern Time, on July 18, 2024. In the event that a request to exercise the Rights is received from such a holder, Agent will consult with Company for instructions as to the number of shares of the Additional Common Stock, if any, Agent is authorized to issue.

 

(c)

Upon request by Company, Agent shall deliver a copy of the prospectus, either by first class mail or by email, as the company shall instruct (i) to each assignee or transferee of the Rights upon receiving appropriate documentation satisfactory to Agent to register the assignment or transfer thereof and (ii) with shares of the Additional Common Stock when such are issued to persons other than the registered holder of the Rights.

 

(d)

Agent shall accept Subscriptions upon the due exercise of the Rights (including payment of the Subscription Price) in physical form or via the dedicated Offer Website, on or prior to the Expiration Time in accordance with the Subscription Form.

 

(e)

With respect to Subscriptions for shares of Additional Common Stock, Agent shall accept Subscriptions from persons who were registered holders of Common Stock on the Record Date, without further authorization or direction from Company, without procuring supporting legal papers or other proof of authority to sign (including without limitation proof of appointment of a fiduciary or other person acting in a representative capacity), and without signatures of co-fiduciaries, co-representatives or any other person; provided that Agent may accept Subscriptions in accordance with instructions from any Rights holder that elects to subscribe for shares of Additional Common Stock to the extent such holder is deemed ineligible to subscribe for shares of Additional Common Stock:

 

(i)

If the Right is registered in the name of a fiduciary and the Subscription Form is executed by such fiduciary, provided, that the Additional Common Stock is to be issued in the name of such fiduciary;

 

(ii)

If the Right is registered in the name of joint tenants and the Subscription Form is executed by one of the joint tenants, provided, that the Additional Common Stock is to be issued in the names of such joint tenants; or

 

(iii)

If the Right is registered in the name of a corporation and the Subscription Form is executed by a person in a manner which appears or purports to be done in the capacity of an officer or agent thereof, provided, that the Additional Common Stock is to be issued in the name of such corporation.

 

(f)

Each document or Electronic Instruction, received by Agent relating to its duties hereunder shall be dated and time stamped when received at the applicable electronic or physical address(es) as outlined in the offering documents.

 

(g)

Agent shall, absent specific and mutually agreed upon instructions between Agent and Company, follow its normal and customary procedures with respect to the acceptance or rejection of all Subscriptions received after the Expiration Time. Subscriptions not authorized to be accepted pursuant to this Section 3 and Subscriptions otherwise failing to comply with the terms and conditions of the Subscription Form will be rejected and returned to the applicable shareholder.

 

 

(h)

Company shall provide an opinion of counsel prior to the Expiration Time to set up a reserve of the Additional Common Stock. The opinion shall state that all of the Additional Common Stock, or the transactions in which they are being issued, as applicable, are:

 

(i)

Registered, or subject to a valid exemption from registration, under the 1933 Act, and all appropriate state securities law filings have been made with respect to the Additional Common Stock, or alternatively, that the shares of the Additional Common Stock are “covered securities” under Section 18 of the 1933 Act; and

 

(ii)

Validly issued, fully paid and non-assessable.

 

4. Acceptance of Subscriptions

 

4.1 Following Agent’s first receipt of Subscriptions, on each business day, or more frequently if reasonably requested as to major tally figures, forward a report by email to John Ball (the “Company Representative”) as to the following information, based upon a preliminary review (and at all times subject to a final determination by Company) as of the close of business on the preceding business day or the most recent practicable time prior to such request, as the case may be: (i) the total number of shares of the Additional Common Stock Subscribed for; (ii) the total number of the Rights sold; (iii) the total number of the Rights partially Subscribed for; (iv) the amount of funds received; and (v) the cumulative totals in categories (i) through (iv), above.

 

4.2 As promptly as possible following the Expiration Time, advise the Company Representative by email of (i) the number of shares of the Additional Common Stock Subscribed for and (ii) the number of shares of the Additional Common Stock unsubscribed for.

 

5. Deposit of Funds

 

5.1 Upon acceptance of a Subscription, all funds accompanying a Subscription and received by Computershare under this Agreement which are to be held by Computershare in the performance of services hereunder (the “Funds”) shall be held by Computershare as agent for Company at commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P Global Inc. (“S&P”) (LT Local Issuer Credit Rating), Moody’s Investors Service, Inc. (“Moody’s”) (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). Until paid pursuant to this Agreement, Computershare may hold or invest the Funds through such accounts, upon Company’s written instruction, in (A) short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States, (B) commercial paper obligations of issuers organized under the Law of a state of the United States, rated A-1 or P-1 or better by Moody’s or S&P, respectively or (C) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion; provided that in the case of each of clauses A through C, no such investment shall have a maturity of more than thirty (30) days. Agent shall furnish, upon Company’s reasonable request, reports to Company showing the current balances of such accounts. The Funds shall not be used for any purpose that is not expressly provided for in this Agreement.

 

5.2 Computershare will only draw upon the Funds in such account(s) as required from time to time in order to make payment to the Company and any applicable tax withholding payments. Computershare shall have no responsibility or liability for any diminution of the Funds that may result from any deposit or investment made by Computershare in accordance with this Section 5, including any losses resulting from a default by any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or other earnings in connection with such deposits. Computershare shall not be obligated to pay such interest, dividends or earnings to Company, any holder or any other party.

 

 

5.3 Computershare is acting as Agent hereunder and is not a debtor of Company in respect of the Funds.

 

6. Completion of Subscription Offer

 

6.1 Upon completion of the Subscription Offer, Agent shall request the transfer agent for the Common Stock to issue the appropriate number of shares of the Additional Common Stock as required in order to effectuate the Subscriptions.

 

6.2 The Rights shall be issued in registered, book-entry form only. Agent shall keep books and records of the registration, transfer and exchange of the Rights (the “Rights Register”).

 

6.3 All of the Rights issued upon any registration of transfer or exchange of the Rights shall be the valid obligations of Company, evidencing the same obligations and entitled to the same benefits under this Agreement as the Rights surrendered for such registration of transfer or exchange; provided, that until such transfer or exchange is registered in the Rights Register, Company and Agent may treat the registered holder thereof as the owner for all purposes.

 

6.4 For so long as this Agreement shall be in effect, Company will reserve for issuance and keep available free from preemptive rights a sufficient number of shares of the Additional Common Stock to permit the exercise in full of all of the Rights issued pursuant to the Subscription Offer.

 

6.5 Company shall take any and all action, including, without limitation, obtaining the authorization, consent, lack of objection, registration or approval of any governmental authority, or the taking of any other action under the laws of the United States of America or any political subdivision thereof, to insure that all of the shares of the Additional Common Stock issuable upon the exercise of the Rights (subject to payment of the Subscription Price) will be duly and validly issued and fully paid and non-assessable shares of the Common Stock, free from all preemptive rights and taxes, liens, charges and security interests created by or imposed upon Company with respect thereto.

 

6.6 Company shall, from time to time, take all action necessary or appropriate to obtain and keep effective all registrations, permits, consents and approvals of the Securities and Exchange Commission and any other governmental agency or authority and make such filings under federal and state laws, which may be necessary or appropriate in connection with the issuance, sale, transfer and delivery of the Rights or the Additional Common Stock issued upon the exercise of the Rights.

 

7. Procedure for Discrepancies Agent shall follow its regular procedures to attempt to reconcile any discrepancies between the number of shares of Additional Common Stock that any Subscription Form may indicate are to be issued to a stockholder upon the exercise of the Rights and the number that the Record Stockholders List indicates may be issued to such stockholder. In any instance where Agent cannot reconcile such discrepancies by following such procedures, Agent will consult with Company for instructions as to the number of shares of Additional Common Stock, if any, Agent is authorized to issue. In the absence of such instructions, Agent is authorized not to issue any shares of Additional Common Stock to such stockholder and will return to the subscribing stockholder (at Agent’s option by either first class mail under a blanket surety bond or insurance protecting Agent and Company from losses or liabilities arising out of the non-receipt or non-delivery of the Subscription Form or by registered mail insured separately for the value of the applicable Rights) to such stockholder’s address as set forth in the Subscription Form, any Subscription Form delivered to Agent, any other documents delivered therewith and a letter explaining the reason for the return of such documents.

 

 

8. Procedure for Deficient Items

 

8.1 Agent shall examine the Subscription Form(s) received by it as agent to ascertain whether they appear to have been completed and executed in accordance with the Subscription Offer. In the event that Agent determines that any Subscription Form does not appear to have been properly completed or executed, or to be in proper form, or any other deficiency in connection with the Subscription Form appears to exist, Agent shall follow, where possible, its regular procedures to attempt to cause such irregularity to be corrected. Agent is not authorized to waive any deficiency in connection with the Subscription, unless Company provides written authorization to waive such deficiency.

 

8.2 If a Subscription Form specifies that shares of the Additional Common Stock are to be issued to a person other than the person in whose name a surrendered Right is registered, Agent will not issue such shares until such Subscription Form has been properly endorsed with the signature guaranteed in a manner acceptable to Agent (or otherwise put in proper form for transfer).

 

8.3 If any such deficiency is neither corrected nor waived, Agent will return to the subscribing stockholder (at Agent’s option by either first class mail under a blanket surety bond or insurance protecting Agent and Company from losses or liabilities arising out of the non-receipt or non-delivery of the Subscription Form or by registered mail insured separately for the value of the applicable Rights) to such stockholder’s address as set forth in the Subscription Form, any Subscription Form delivered to Agent, any other documents delivered therewith and a letter explaining the reason for the return of such documents.

 

9. Tax Reporting

 

9.1 Agent shall prepare and file with the appropriate governmental agency and mail to each stockholder, as applicable, all appropriate tax information forms, including, but not limited to, Forms 1099-B, covering payments or any other distributions made by Agent pursuant to this Agreement during each calendar year, or any portion thereof, during which Agent performs services hereunder, as described in the attached Exhibit A. Any cost basis or tax adjustments required after the Effective Time will incur additional fees.

 

9.2 With respect to any surrendering stockholder whose TIN has not been certified as correct, Agent shall deduct and withhold the appropriate backup withholding tax from any payment made to such stockholder pursuant to the Internal Revenue Code.

 

9.3 Should any issue arise regarding federal income tax reporting or withholding, Agent shall take such reasonable action as Company may reasonably request in writing. Such action may be subject to additional fees.

 

10. Unresponsive Payees; Unclaimed Property

 

10.1 After the eight month anniversary of the Effective Time, Computershare may cause the performance of a more in-depth search for the purpose of locating unresponsive payees of checks representing any uncashed payments resulting from this Subscription Offer and locating and/or contacting holders who have not yet cashed their checks representing overpayment of subscription application funds, which checks are older than 180 days and who have already received the required unresponsive payee notification under Rule 17Ad-17, in each case using the services of a locating service provider selected by Computershare (“Service Provider”), which Service Provider may be an affiliate of Computershare. Such Service Provider may compensate Computershare for processing and other services Computershare provides in connection with such services, including providing Computershare a portion of its fees. Such Service Provider shall inform any such located and/or contacted stockholders that they may choose (I) to contact Computershare directly to receive a check for payment at no charge other than any applicable fees contemplated by this Agreement or (II) to utilize the services of such Service Provider for a fee, which may not exceed approximately 10% of the total value of such stockholder’s uncashed payment or the maximum statutory fee permitted by the applicable state jurisdiction; provided that such processing fee shall not include or limit applicable fees to replace lost certificates. If the Company selects a locating and/or asset reunification service provider other than one selected by Computershare, then Computershare shall not be responsible for the terms of any agreement with such provider and additional fees may apply.

 

 

Pursuant to Section 11.9 of this Agreement, the Company hereby authorizes and instructs Computershare to provide to Service Provider on behalf of Computershare or Company pursuant to this Article I, Section 10:

 

(i)

aggregate data of stockholders who have not cashed their checks representing return of funds related to the Offer and Company information, including number of accounts, value Uncashed checks, effective date and type of transaction, second mailing date (if applicable), and information concerning this Section 10, in order for the Service Provider to determine the feasibility of providing locating and/or asset reunification services; and

 

(ii)

upon determination by the Service Provider that a stockholder locating and/or asset reunification program will be implemented and after notification of implementation to Company by Computershare (including by e-mail):

 

(1)

a complete file of stockholders including those with outstanding payments, who have not yet cashed their checks representing payment of any subscription refund

 

(2)

preliminary escheatment files of of stockholders with uncashed checks (used to block accounts that may not be serviced under the program based on state unclaimed property laws); and

 

(iii)

view only access to stockholder data (during the time a program is in place) for the limited purposes of verifying account information and reconciliation for program eligible accounts and to Company information related to the transaction such as the expiration date.

 

10.2 Agent shall report unclaimed property to each state in compliance with state laws. Agent will charge Purchaser its standard fees plus expenses (including the cost of due diligence mailings) for such services.

 

11. Authorizations and Protections

 

As agent for Company hereunder, Agent:

 

11.1 Shall have no duties or obligations other than those specifically set forth herein or as may subsequently be agreed to in writing by Agent and Company;

 

11.2 Shall have no obligation to deliver the Additional Common Stock unless Company shall have provided a sufficient number of shares of the Additional Common Stock to satisfy the exercise of the Rights by holders as set forth hereunder;

 

11.3 Shall be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value, or genuineness of any certificates, if applicable, or the Rights represented thereby surrendered hereunder or the Additional Common Stock issued in exchange therefor, and will not be required to or be responsible for and will make no representations as to, the validity, sufficiency, value or genuineness of the Subscription Offer;

 

 

11.4 Shall not be obligated to take any legal action hereunder; if, however, Agent determines to take any legal action hereunder, and where the taking of such action might, in Agent’s judgment, subject or expose it to any expense or liability, Agent shall not be required to act unless it shall have been furnished with an indemnity satisfactory to it;

 

11.5 May rely on and shall be fully authorized and protected in acting or failing to act upon any certificate, instrument, opinion, notice, letter, telegram, telex, facsimile transmission or other document or security delivered to Agent and believed by Agent to be genuine and to have been signed by the proper party or parties;

 

11.6 Shall not be liable or responsible for any recital or statement contained in the Subscription Offer or any other documents relating thereto;

 

11.7 Shall not be liable or responsible for any failure of the Company or any other party to comply with any of its covenants and obligations relating to the Subscription Offer, including without limitation obligations under applicable securities laws;

 

11.8 Shall not be liable to any holder of the Rights for any Additional Common Stock or dividends thereon or, if applicable, and any related unclaimed property that has been delivered to a public official pursuant to applicable abandoned property law;

 

11.9 May, from time to time, rely on instructions provided by Company concerning the services provided hereunder. Further, Agent may apply to any officer or other authorized person of Company for instruction and may consult with legal counsel for Agent or Company with respect to any matter arising in connection with the services provided hereunder. Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company under Section 13.2 of this Agreement for any action taken or omitted by Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company;

 

11.10 May rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an eligible guarantor institution that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable signature guarantee program or insurance program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed;

 

11.11 Either in connection with, or independent of the instruction term in Section 10.9, above, Agent may consult counsel satisfactory to Agent (including internal counsel), and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Agent hereunder in good faith and in reliance upon the advice of such counsel;

 

11.12 May perform any of its duties hereunder either directly or by or through agents or attorneys and Agent shall not be liable or responsible for any misconduct or negligence on the part of any agent or attorney appointed with reasonable care hereunder; and

 

11.13 Is not authorized, and shall have no obligation, to pay any brokers, dealers, or soliciting fees to any person.

 

 

12. Representations, Warranties and Covenants

 

12.1 Agent. Agent represents and warrants to Company that:

 

(a)

Governance. Trust Company is a federally chartered trust company duly organized, validly existing, and in good standing under the laws of the United States and Computershare is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and each has full power, authority and legal right to execute, deliver and perform this Agreement; and

 

(b)

Compliance with Laws. The execution, delivery and performance of this Agreement by Agent has been duly authorized by all necessary action, constitutes the legal, valid and binding obligation of Agent enforceable against Agent in accordance with its terms, will not require the consent of any third party that has not been given, and will not violate, conflict with or result in the breach of any material term, condition or provision of (A) any existing law, ordinance, or governmental rule or regulation to which Agent is subject, (B) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority applicable to Agent, (C) Agent’s incorporation documents or by-laws, or (D) any material agreement to which Agent is a party.

 

12.2 Company. Company represents and warrants to Agent that:

 

(a)

Governance. It is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland, and it has full power, authority and legal right to enter into and perform this Agreement;

 

(b)

Compliance with Laws. The execution, delivery and performance of this Agreement by Company has been duly authorized by all necessary action, constitutes the legal, valid and binding obligation of Company enforceable against Company in accordance with its terms, will not require the consent of any third party that has not been given, and will not violate, conflict with or result in the breach of any material term, condition or provision of (A) any existing law, ordinance, or governmental rule or regulation to which Company is subject, (B) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority applicable to Company, (C) Company’s incorporation documents or by-laws, (D) any material agreement to which Company is a party, or (E) any applicable stock exchange rules;

 

(c)

Securities Laws. Registration statements under the 1933 Act and the Securities Exchange Act of 1934 (the “1934 Act”) have been filed and are currently effective, or will be effective prior to the sale of any Additional Common Stock, and will remain so effective, and all appropriate state securities law filings have been made with respect to all of the Additional Common Stock being offered for sale, except for any shares of Additional Common Stock which are offered in a transaction or series of transactions which are exempt from the registration requirements of the 1933 Act, 1934 Act and state securities laws; Company will immediately notify Agent of any information to the contrary; and

 

(d)

Shares. The Additional Common Stock issued and outstanding on the date hereof have been duly authorized, validly issued and are fully paid and are non-assessable; and any Additional Common Stock to be issued hereafter, when issued, shall have been duly authorized, validly issued and fully paid and will be non-assessable.

 

13. Indemnification and Limitation of Liability

 

13.1 Liability. Agent shall only be liable for any loss or damage determined by a court of competent jurisdiction to be a result of Agent’s gross negligence or willful misconduct; provided that any liability of Agent will be limited in the aggregate to the amounts paid hereunder by Company to Agent as fees and charges, but not including reimbursable expenses.

 

13.2 Indemnity. Company shall indemnify and hold Agent harmless from and against, and Agent shall not be responsible for, any and all losses, claims, damages, costs, charges, penalties and related interest, counsel fees and expenses, payments, expenses and liability (collectively, “Losses”) arising out of or attributable to Agent’s duties under this Agreement or this appointment, including the reasonable costs and expenses of defending itself against any Loss or enforcing this Agreement, except for any liability of Agent as set forth in Section 13.1, above.

 

14 Damages Notwithstanding anything in this Agreement to the contrary, neither party shall be liable to the other for any incidental, indirect, special or consequential damages of any nature whatsoever, including, but not limited to, loss of anticipated profits, occasioned by a breach of any provision of this Agreement even if apprised of the possibility of such damages.

 

15. Confidentiality

 

15.1 Definition. “Confidential Information” shall mean any and all technical or business information relating to a party, including, without limitation, financial, marketing and product development information, shareholder data (including any non-public information of such Shareholder), proprietary information, and the terms and conditions (but not the existence) of this Agreement, that is disclosed or otherwise becomes known to the other party or its affiliates, agents or representatives before or during the term of this Agreement. Confidential Information constitutes trade secrets and is of great value to the owner (or its affiliates). Confidential Information shall not include any information that is: (a) already known to the other party or its affiliates at the time of the disclosure; (b) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the other party; (c) subsequently disclosed to the other party or its affiliates on a non-confidential basis by a third party not having a confidential relationship with the owner and which rightfully acquired such information; or (d) independently developed by one party without access to Confidential Information of the other.

 

15.2 Use and Disclosure. All Confidential Information of a party will be held in confidence by the other party with at least the same degree of care as such party protects its own confidential or proprietary information of like kind and import, but not less than a reasonable degree of care. Neither party will disclose in any manner Confidential Information of the other party in any form to any person or entity without the other party’s prior consent. However, each party may disclose relevant aspects of the other party’s Confidential Information to its officers, affiliates, agents, subcontractors and employees to the extent reasonably necessary to perform its duties and obligations under this Agreement and such disclosure is not prohibited by applicable law. Without limiting the foregoing, each party will implement physical and other security measures and controls designed to protect (a) the security and confidentiality of Confidential Information; (b) against any threats or hazards to the security and integrity of Confidential Information; and (c) against any unauthorized access to or use of Confidential Information. To the extent that a party delegates any duties and responsibilities under this Agreement to an agent or other subcontractor, the party ensures that such agent and subcontractor are contractually bound to confidentiality terms consistent with the terms of this Section 15.

 

15.3 Required or Permitted Disclosure. In the event that any requests or demands are made for the disclosure of Confidential Information, other than requests to Agent for Shareholder records pursuant to standard subpoenas from state or federal government authorities (e.g., divorce and criminal actions), the party receiving such request will promptly notify the other party to secure instructions from an authorized officer of such party as to such request and to enable the other party the opportunity to obtain a protective order or other confidential treatment, unless such notification is otherwise prohibited by law or court order. Each party expressly reserves the right, however, to disclose Confidential Information to any person whenever it is advised by counsel that it may be held liable for the failure to disclose such Confidential Information or if required by law or court order.

 

 

15.4 Unauthorized Disclosure. As may be required by law and without limiting any party’s rights in respect of a breach of this Section 14, each party will promptly:

 

(a)

Notify the other party in writing of any unauthorized possession, use or disclosure of the other party’s Confidential Information by any person or entity that may become known to such party;

 

(b)

Furnish to the other party full details of the unauthorized possession, use or disclosure; and

 

(c)

Use commercially reasonable efforts to prevent a recurrence of any such unauthorized possession, use or disclosure of Confidential Information.

 

15.5 Costs. Each party will bear the costs it incurs as a result of compliance with this Section 14.

 

16. Compensation and Expenses

 

16.1 Company shall pay to Agent compensation in accordance with the fee schedule attached as Exhibit C hereto, together with reimbursement for reasonable fees and disbursements of counsel, regardless of whether any Rights are surrendered to Agent, for Agent’s services hereunder.

 

16.2 Company shall be charged for certain expenses advanced or incurred by Agent in connection with Agent’s performance of its duties hereunder. Such charges include, but are not limited to, stationery and supplies, such as checks, envelopes and paper stock, as well as any disbursements for telephone and document creation and delivery. While Agent endeavors to maintain such charges (both internal and external) at competitive rates, these charges may not reflect actual out-of-pocket costs, and may include handling charges to cover internal processing and use of Agent’s billing systems.

 

16.3 If any out-of-proof condition caused by Company or any of its prior agents arises during any terms of this agreement, Company will, promptly upon Agent’s request, provide Agent with funds or shares sufficient to resolve the out-of-proof condition.

 

16.4 All amounts owed to Agent hereunder are due within thirty (30) days of the invoice date. Delinquent payments are subject to a late payment charge of one and one half percent (1.5%) per month commencing forty-five (45) days from the invoice date. Company agrees to reimburse Agent for any attorney’s fees and any other costs associated with collecting delinquent payments.

 

16.5 Company is responsible for all taxes, levies, duties, and assessments levied on services purchased under this Agreement (collectively, “Transaction Taxes”). Computershare is responsible for collecting and remitting Transaction Taxes in all jurisdictions in which Computershare is registered to collect such Transaction Taxes. Computershare shall invoice Company for such Transaction Taxes that Computershare is obligated to collect upon the furnishing of services provided hereunder. Company shall pay such Transaction Taxes according to the terms in Section 16.1, above. Computershare shall timely remit to the appropriate governmental authorities all such Transaction Taxes that Computershare collects from Company. To the extent that Company provides Computershare with valid exemption certificates, direct pay permits, or other documentation that exempts Computershare from collecting Transaction Taxes from Company, invoices issued for services hereunder provided after Computershare’s receipt of such certificates, permits, or other documentation will not reflect exempted Transaction Taxes. Computershare is solely responsible for the payment of all personal property taxes, franchise taxes, corporate excise or privilege taxes, property or license taxes, taxes relating to Computershare’s personnel, and taxes based on Computershare’s net income or gross revenues relating to services provided hereunder.

 

 

17. Termination Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party. Unless so terminated, this Agreement shall continue in effect until ninety (90) days following the Expiration Time. In the event of such early termination, Company will appoint a successor agent and inform Agent of the name and address of any successor agent so appointed, provided, that no failure by Company to appoint such a successor agent shall affect the termination of this Agreement or the discharge of Agent as agent hereunder. Upon any such termination, Agent shall be relieved and discharged of any further responsibilities with respect to its duties hereunder. Upon payment of all outstanding fees and expenses hereunder, Agent shall promptly forward to Company or its designee any Subscription Forms or other documents relating to the Subscription Offer that Agent may receive after its appointment has so terminated.

 

18. Assignment Neither this Agreement nor any rights or obligations hereunder may be assigned by Company or Agent without the written consent of the other; provided, however, that Agent may, without further consent of Company, assign any of its rights and obligations hereunder to any affiliated agent registered under Rule 17Ac2-1 promulgated under the 1934 Act.

 

19. Subcontractors and Unaffiliated Third Parties

 

19.1 Subcontractors. Agent may, without further consent of Company, subcontract with (a) any affiliates, or (b) unaffiliated subcontractors for such services as may be required from time to time (e.g., lost shareholder searches, escheatment, telephone and mailing services); provided, however, that Agent shall be as fully responsible to Company for the acts and omissions of any subcontractor as it is for its own acts and omissions.

 

19.2 Unaffiliated Third Parties. Nothing herein shall impose any duty upon Agent in connection with or make Agent liable for the actions or omissions to act of unaffiliated third parties (other than subcontractors referenced in Section 19.1, above) such as, by way of example and not limitation, airborne services, delivery services, the U.S. mails, and telecommunication companies, provided, if Agent selected such company, Agent exercised due care in selecting the same.

 

20. Miscellaneous

 

20.1 Notices. All notices, demands and other communications given pursuant to the terms and provisions hereof shall be in writing, shall be deemed effective on the date of receipt, and may be sent by overnight delivery services, or by certified or registered mail, return receipt requested to:

 

If to Company:		with an additional copy to:
The Gabelli Multimedia Trust Inc.		John Ball, jball@gabelli.com
One Corporate Center
Rye, NY 10580
PGoldstein@gabelli.com
Attn: Peter Goldstein
The Gabelli Multimedia Trust Inc.
One Corporate Center
Rye, NY 10580
Attn: John Ball
If to Agent:		with an additional copy to:
Computershare Inc.		Computershare Inc.
480 Washington Blvd., 26th Floor		150 Royall Street
Jersey City, NJ 07310		Canton, MA 02021
Attn: Corp Actions Relationship Manager		Attn: Legal Department

 

 

Or
Computershare Inc.
150 Royall Street
Canton, MA 02021
Attn: Corp Actions Relationship Manager
Or
Computershare Inc.
462 S. 4th Street, 7th Floor
Louisville, KY 40202
Attn: Corp Actions Relationship Manager

 

20.2 No Expenditure of Funds. No provision of this Agreement shall require Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it shall believe in good faith that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.

 

20.3 Publicity. Neither party hereto shall issue a news release, public announcement, advertisement, or other form of publicity concerning the existence of this Agreement or the services to be provided hereunder without obtaining the prior written approval of the other party, which may be withheld in the other party’s sole discretion; provided, that Agent may use Company’s name in its customer lists or otherwise as required by law or regulation.

 

20.4 Successors. All the covenants and provisions of this Agreement by or for the benefit of Company or Agent shall bind and inure to the benefit of their respective successors and assigns hereunder.

 

20.5 Amendments. This Agreement may be amended or modified by a written amendment executed by the parties hereto and, to the extent required, authorized by a resolution of the Board of Directors of Company.

 

20.6 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

 

20.7 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of New York, without regard to principles of conflicts of law. The parties hereto irrevocably (a) submit to the non-exclusive jurisdiction of any New York State court sitting in New York City or the United States District Court for the Southern District of New York in any action or proceeding arising out of or relating to this Agreement,

 

(b) waive, to the fullest extent they may effectively do so, any defense based on inconvenient forum, improper venue or lack of jurisdiction to the maintenance of any such action or proceeding, and (c) waive all right to trial by jury in any action, proceeding or counterclaim arising out of this Agreement or the transactions contemplated hereby. Agent shall not be required hereunder to comply with the laws or regulations of any country other than the United States of America or any political subdivision thereof. Agent may consult with foreign counsel, at Company’s expense, to resolve any foreign law issues that may arise as a result of Company or any other party being subject to the laws or regulations of any foreign jurisdiction.

 

20.8 Force Majeure. Agent will not be liable for any delay or failure in performance when such delay or failure arises from circumstances beyond its reasonable control, including without limitation acts of God, acts of government in its sovereign or contractual capacity, acts of public enemy or terrorists, acts of civil or military authority, war, riots, civil strife, terrorism, blockades, sabotage, rationing, embargoes, epidemics, pandemics, outbreaks of infectious diseases or any other public health crises, earthquakes, fire, flood, other natural disaster, quarantine or any other employee restrictions, power shortages or failures, utility or communication failure or delays, labor disputes, strikes, or shortages, supply shortages, equipment failures, or software malfunctions.

 

 

20.9 Third Party Beneficiaries. The provisions of this Agreement are intended to benefit only Agent, Company and their respective permitted successors and assigns. No rights shall be granted to any other person by virtue of this Agreement, and there are no third party beneficiaries hereof.

 

20.10 Survival. All provisions regarding indemnification, warranty, liability and limits thereon, compensation and expenses and confidentiality and protection of proprietary rights and trade secrets shall survive the termination or expiration of this Agreement.

 

20.11 Priorities. In the event of any conflict, discrepancy, or ambiguity between the terms and conditions contained in (a) this Agreement, (b) any exhibits, schedules or attachments hereto, and (c) the Subscription Offer, the terms and conditions contained in this Agreement shall take precedence.

 

20.12 Merger of Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement with respect to the subject matter hereof, whether oral or written.

 

20.13 No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by all parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 

20.14 Descriptive Headings. Descriptive headings contained in this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.

 

20.15 Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Agreement executed and/or transmitted electronically shall have the same authority, effect, and enforceability as an original signature.

 

 

[The remainder of this page has been intentionally left blank. Signature page follows.]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the Effective Date hereof.

 

GABELLI UTILITY TRUST
By:
Name:	John C. Ball
Title:	President

 

COMPUTERSHARE INC. and COMPUTERSHARE TRUST COMPANY, N.A. For both entities
By:
Name:	Neda Sheridan
Title:	Executive Vice President

 

Exhibit A	Tax Instruction and Cost Basis Information Letter
Exhibit B	Wire Instructions
Exhibit C	Schedule of Fees

 

 

Exhibit (k)(7)

 

Master Engagement Agreement

 

This engagement agreement (“Agreement”) confirms our understanding that The Gabelli Utility Trust (the “Company” or “you”) has engaged Sodali & Co (“Sodali” or “we” or “us”) (each a “Party” and collectively the “Parties”) to provide the services described below. This Agreement is effective on August 26, 2024 and shall continue until terminated by one or both of the Parties according to the terms herein.

 

1. Services. Sodali’s services and the associated fees shall be described in the Statement of Work No. 1 attached hereto and in any subsequent Statements of Work (each an “SOW”) adopted by the Parties, each of which shall become a part of this Agreement. The Parties acknowledge and agree that Sodali is an independent contractor to the Company and is not a fiduciary or employee of the Company. The advice provided by us pursuant to this Agreement is not intended to, and does not, constitute investment, financial, or legal advice, with respect to which the Company shall consult its own advisors and counsel.

 

2. Expenses. Except as set forth in any applicable Statement of Work, the Company agrees that it will promptly reimburse Sodali for all reasonable expenses incurred (including travel, research and data services, mailing and delivery, and document production expenses) in the performance of our responsibilities under this Agreement.

 

3. Confidentiality. Except as set forth in any applicable SOW, the existence and contents of this Agreement, and our engagement hereunder and the terms and conditions thereof, may not be disclosed by either Party without the prior written consent of the other Party, except as required by applicable law or legal process; provided, however, that we may disclose for marketing purposes the fact that Company has engaged Sodali (but no other information about the engagement). Information provided by the Company to us in connection with this Agreement shall be kept confidential and shall only be used by us for purposes of this Agreement, except that the foregoing shall not apply to information that (i) was in our possession prior to its disclosure by the Company; (ii) is publicly disclosed other than by us in violation of this Agreement; (iii) is obtained by us on a non-confidential basis from a person other than the Company who, to the reasonable knowledge of Sodali, is not bound by a duty of confidentiality to the Company; (iv) you expressly agree in writing may be disclosed; or (v) is required or requested to be disclosed under compulsion of law (whether by oral question, interrogatory, subpoena, civil investigative demand or otherwise), by order of any court or governmental or regulatory authority or body, or by Sodali’s independent auditors. Sodali’s obligations under the preceding sentence shall terminate three years from the date of first disclosure. Except for any materials intended for public disclosure at the time of such disclosure, the information and advice given by Sodali pursuant to this Agreement is solely for the confidential use of the Company, its Board of Directors, senior management and its advisors who are bound by a duty of confidentiality to the Company and may not be disclosed, quoted, reproduced, summarized, described or referred to without the prior written consent of Sodali, except as required by applicable law or legal process.

 

4. Indemnification. (a) As a material inducement to Sodali to enter into this Agreement, the Company hereby agrees to indemnify, defend and hold harmless oSodali and each of its affiliates and each of their respective directors, officers, stockholders, agents, subcontractors and employees (collectively with Sodali, the “Indemnified Persons”) from and against any and all losses, claims, damages, liabilities, judgments, costs, and expenses (including reasonable fees and disbursements of counsel and costs of investigation) (collectively, “Losses”) relating to or arising out of activities performed or services or advice furnished pursuant to this Agreement, except to the extent such Losses are finally judicially determined to have resulted from an Indemnified Person’s gross negligence or willful misconduct.

 

 

(b) In the event of the commencement of any claim, action or proceeding in respect of which Sodali may seek indemnification from the Company hereunder (each a “Claim”), we will give prompt written notice thereof to the Company; provided that the failure to so provide prompt notice shall not relieve the Company of its indemnification obligations hereunder except to the extent that the Company is materially prejudiced as a result thereof. The Company may assume the defense of any Claim with counsel reasonably acceptable to us so long as, in the reasonable opinion of our counsel, there is no actual or potential conflict of interest between the parties. The Company shall in no event be liable for any settlement by an Indemnified Person of any Claim made without the prior written consent of the Company, which consent shall not be unreasonably withheld.

 

(c) The Company will not, without Sodali’s written consent, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any Claim, whether or not any Indemnified Person is an actual or potential party thereto, unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Person from any liabilities arising out of such Claim and does not contain any statement that could reasonably be viewed as an acknowledgment of wrongdoing on Sodali’s part or otherwise as detrimental to its reputation.

 

(d) The Rights to indemnification for each Indemnified Person under this Agreement shall include the Rights to be reimbursed for any and all costs and expenses incurred in connection with any Claim as such costs and expenses are incurred.

 

5. Termination. This Agreement and, except as set forth in any SOW, the SOWs hereunder may be terminated by either Party upon giving 30 days’ written notice to the other Party or as set forth in any SOW. No such termination will affect (i) Sodali’s Rights to receive fees earned prior to such termination or to receive reimbursement of its expenses pursuant to Section 2, or (ii) the Rights and obligations of the Parties pursuant to Section 3 (Confidentiality) or 4 (Indemnification).

 

6. Notices. Notices under this Agreement shall be in writing and delivered to the Parties by an overnight courier with tracking capability or by electronic mail at the addresses set forth under each of their names on the signature pages hereto. Notices given by electronic mail shall not be effective unless receipt is confirmed by return electronic mail (a read receipt or any other automated reply shall not serve as such confirmation).

 

7. Waiver; Severability. The failure of a Party to insist upon strict adherence to any term contained herein shall not be deemed to be a waiver of such Party’s Rights thereafter to insist upon strict adherence to that term or to any other term contained herein. In the event that any one or more provisions of this Agreement are deemed to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such provision(s) shall be deemed severed to the least extent possible without affecting the validity, legality and enforceability of the remainder of this Agreement.

 

8. Choice of Law; Exclusive Forum. This Agreement (i) shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles; (ii) contains the entire understanding of the Parties with respect to the subject matter contained herein and may not be modified or amended except by mutual written consent; (iii) shall inure to the benefit of and be binding upon the Parties and their respective heirs, representatives, successors, and assigns (provided that no Party may assign or delegate any of its Rights or obligations herein without the consent of the other Party); and (iv) may be executed in counterparts and delivered by facsimile or electronic signatures. Any proceeding related to or arising out of this Agreement shall be commenced, prosecuted or continued in the courts of New York City, New York. The Parties waive all Rights to trial by jury in any such proceeding.

 

 

9. Damages. Except for the Company’s indemnification obligations in Section 4 above, in no event, regardless of the legal theory advanced, shall either Party be liable for any consequential, indirect, incidental, punitive or special damages of any nature in connection with this Agreement or activities performed, or services or advice furnished pursuant to this Agreement.

 

Accepted and agreed as of the date first written above.

 

Sodali & Co			The Gabelli Utility Trust
By:			By:
Name:	Donna M. Corso		Name:	John C. Ball
Title:	Managing Director		Title:	President
Address:			Address:
Email:			Email:

 

 

Exhibit (l)(2)

 

Morris, Nichols, Arsht & Tunnell llp

 

1201 North Market Street

P.O. Box 1347

Wilmington, Delaware 19899-1347

 

 

(302) 658-9200

(302) 658-3989 FAX

 

September 9, 2024

 

The Gabelli Utility Trust

One Corporate Center

Rye, New York 10580-1422

 

Re:

The Gabelli Utility Trust

 

Ladies and Gentlemen:

 

We have acted as special Delaware counsel to The Gabelli Utility Trust, a Delaware statutory trust (the “Trust”), in connection with certain matters of Delaware law relating to the issuance of (i) 15,196,393 shares (the “Common Shares”) of the Trust’s common shares of beneficial interest, par value $0.001 per share and (ii) 75,981,965 transferrable subscription rights to purchase the Common Shares (the “Subscription Rights” and together with the Common Shares, the “Securities”) pursuant to the Registration Statement on Form N-2 of the Trust (File Nos. 333-275448 and 811-09243) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), and the Investment Company Act of 1940, as amended (the “Investment Company Act”), and declared effective by the Commission on November 9, 2023, as amended by Pre-Effective Amendment No. 1 under the Securities Act and Amendment No. 37 under the Investment Company Act on Form N-2 of the Trust as filed with the Commission on December 26, 2023 and as further amended by Pre-Effective Amendment No. 2 under the Securities Act and Amendment No. 38 under the Investment Company Act on Form N-2 of the Trust as filed with the Commission on December 28, 2023 (as so amended, the “Registration Statement”), and the Prospectus Supplement of the Trust (the “Prospectus Supplement”) relating to the offering of the Securities, to be filed with the Commission pursuant to Rule 424(b)(2) of the Securities Act Rules and Regulations on or about the date hereof. Capitalized terms used herein and not otherwise herein defined are used as defined in the Third Amended and Restated Agreement and Declaration of Trust of the Trust dated as of February 16, 2011 (the “Governing Instrument”).

 

 

In rendering this opinion, we have examined and relied on copies of the following documents in the forms provided to us: the Registration Statement; the Prospectus Supplement; the form of Transferrable Subscription Rights Certificate for Common Shares evidencing the Subscription Rights (the “Subscription Rights Certificate”); the Instrument of Designation of Rights dated as of September 9, 2024 (the “Instrument of Designation”); the Certificate of Trust of the Trust under which the Trust was named “The Gabelli Utility Fund” as filed in the Office of the Secretary of State of the State of Delaware (the “State Office”) on February 25, 1999, as amended by the Certificate of Amendment thereto changing the name of the Trust to “The Gabelli Utility Trust” as filed in the State Office on May 28, 1999, as further amended by the Certificate of Amendment thereto changing the registered agent and registered office of the Trust as filed in the State Office on October 17, 2007 (as so amended, the “Certificate”); the Agreement and Declaration of Trust of the Trust (then named The Gabelli Utility Fund) dated as of March 29, 1999 (the “Original Governing Instrument”); the Amended and Restated Agreement and Declaration of Trust of the Trust (then named The Gabelli Utility Fund) dated as of May 19, 1999; the Second Amended and Restated Agreement and Declaration of Trust of the Trust dated as of February 26, 2009; the Governing Instrument; resolutions of the Board of Trustees of the Trust prepared for adoption at a meeting held on May 15, 2024 (the “Board Resolutions”); resolutions of the Pricing Committee of the Trust prepared for adoption at a meeting held on August 22, 2024 (the “Pricing Committee Resolutions” and together with the Board Resolutions, the “Authorizing Resolutions”); the Bylaws of the Trust (then named The Gabelli Utility Fund); the Amended and Restated Bylaws of the Trust dated as of December 3, 2010, as amended by Amendment No. 1 thereto dated as of January 15, 2010 (as so amended, the “Bylaws” and together with the Governing Instrument, the Authorizing Resolutions, the Instrument of Designation, the Subscription Rights Certificate, the Prospectus Supplement and the Registration Statement, the “Governing Documents”); an Officer’s Certificate of the Trust dated on or about the date hereof; and a certification of good standing of the Trust obtained as of a recent date from the State Office. In such examinations, we have assumed the genuineness of all signatures, the conformity to original documents of all documents submitted to us as drafts or copies or forms of documents to be executed and the legal capacity of natural persons to complete the execution of documents. We have further assumed for purposes of this opinion: (i) the due authorization, adoption, execution and delivery, as applicable, by, or on behalf of, each of the parties thereto (other than the Trust) of the above-referenced instruments, certificates and other documents; (ii) that appropriate notation of the names and addresses of, the number of Securities held by, and, as applicable, the consideration paid by, all holders of Securities (including all Shareholders) will be maintained in the appropriate registers and other books and records of the Trust in connection with the issuance, redemption or transfer of Securities; (iii) that the activities of the Trust have been and will be conducted in accordance with the Governing Instrument and the Delaware Statutory Trust Act, 12 Del. C. §§ 3801 et seq. (the “Delaware Act”); (iv) that the Trust became a registered investment company under the Investment Company Act within 180 days following the first issuance of beneficial interests therein; (v) that a properly completed and executed Subscription Rights Certificate will be delivered to each holder of record of Common Shares at the close of business on the record date identified in the Prospectus Supplement, and the Subscription Rights will otherwise be issued in accordance with the terms, conditions, requirements and procedures set forth in the Governing Documents and the Delaware Act; (vi) that the required consideration for the Common Shares is paid in accordance with the terms, conditions, requirements and procedures set forth in the Governing Documents and that the Common Shares are otherwise issued in accordance with the terms, conditions, requirements and procedures set forth in the Governing Documents and the Delaware Act; and (vii) that each of the documents examined by us is in full force and effect and has not been modified, supplemented or otherwise amended, except as herein referenced. We have not reviewed any documents other than those identified above in connection with this opinion, and we have assumed that there are no documents, facts or circumstances that are contrary to or inconsistent with the opinions expressed herein. No opinion is expressed with respect to the requirements of, or compliance with, federal or state securities or blue sky laws. Further, we express no opinion with respect to, and we assume no responsibility for, any offering documentation relating to the Trust or the Securities. As to any facts material to our opinion, other than those assumed, we have relied without independent investigation on the above-referenced documents and on the accuracy, as of the date hereof, of the matters therein contained.

 

 

Based on and subject to the foregoing, and limited in all respects to matters of Delaware law, it is our opinion that:

 

1. The Trust is a duly formed and validly existing statutory trust in good standing under the laws of the State of Delaware.

 

2. The Subscription Rights, when issued in accordance with the terms, conditions, requirements and procedures set forth in the Governing Documents, will be duly authorized and will constitute valid and binding obligations of the Trust, enforceable against the Trust in accordance with their terms.

 

3. The Common Shares, when issued in accordance with the terms, conditions, requirements and procedures set forth in the Governing Documents, will constitute legally issued, fully paid and non-assessable shares of beneficial interest in the Trust.

 

Our opinion expressed in paragraph 2 above is subject to (i) bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance, moratorium or other similar laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time in effect, (ii) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) considerations of public policy or the effect of applicable law relating to fiduciary duties and (iv) principles of course of dealing or course of performance and standards of good faith, fair dealing, materiality and reasonableness that may be applied by a court to the exercise of rights and remedies.

 

With respect to the opinion expressed in paragraph 3 above, we note that, pursuant to Section 3.7 of Article III of the Governing Instrument, the Trustees of the Trust have the power, as frequently as they may determine, to cause each Shareholder to pay directly, in advance or arrears, for charges of distribution, of the custodian or transfer, shareholder servicing or similar agent, a pro rata amount as defined from time to time by the Trustees, by setting off such charges due from such Shareholder from declared but unpaid dividends or distributions owed such Shareholder and/or by reducing the number of shares in the account of such Shareholder by that number of full and/or fractional Shares which represents the outstanding amount of such charges due from such Shareholder.

 

 

We hereby consent to being named in the Prospectus Supplement, to the discussion of this opinion in the Prospectus Supplement and to the filing of a copy of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder. This opinion speaks only as of the date hereof and is based on our understandings and assumptions as to present facts and on our review of the above-referenced documents and the application of Delaware law as the same exist on the date hereof, and we undertake no obligation to update or supplement this opinion after the date hereof for the benefit of any person or entity with respect to any facts or circumstances that may hereafter come to our attention or any changes in facts or law that may hereafter occur or take effect. This opinion is intended solely for the benefit of the Trust and the Shareholders and holders of Subscription Rights in connection with the matters contemplated hereby and may not be relied on by any other person or entity, or for any other purpose, without our prior written consent.

 

	Very truly yours,
	MORRIS, NICHOLS, ARSHT & TUNNELL LLP
	/s/ Louis G. Hering
	Louis G. Hering

 

 

Exhibit (s)(3)

 

Calculation of Filing Fee Tables

 

FORM N-2

(Form Type)

 

THE GABELLI UTILITY TRUST

(Exact Name of Registrant as Specified in its Charter)

 

The maximum aggregate offering price being offered pursuant to the Prospectus Supplement dated September 9, 2024 (the “Prospectus Supplement”) and the accompanying Base Prospectus dated December 28, 2023 (together with the Prospectus Supplement, the “Prospectus”) is $75,981,965 (the “Offering”). The Prospectus, in the form filed with the Securities and Exchange Commission pursuant to Rule 424(b)(2) under the Securities Act of 1933, as amended, on September 9, 2024, is the final prospectus relating to the Offering.

 

v3.24.2.u1

N-2	Sep. 09, 2024
Cover [Abstract]
Entity Central Index Key	0001080720
Amendment Flag	true
Amendment Description	This Post-Effective Amendment No. 1 to the Registration Statement on Form N-2 (File Nos. 333-275448 and 811-09243) of The Gabelli Utility Trust (the “Registration Statement”) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of filing exhibits to the Registration Statement. Accordingly, this Post-Effective Amendment No. 1 consists only of a facing sheet, this explanatory note and Part C of the Registration Statement setting forth the exhibits to the Registration Statement. This Post-Effective Amendment No. 1 does not modify any other part of the Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 1 shall become effective immediately upon filing with the Securities and Exchange Commission. The contents of the Registration Statement are hereby incorporated by reference.
Document Type	POS EX
Entity Registrant Name	THE GABELLI UTILITY TRUST
Entity Address, Address Line One	One Corporate Center
Entity Address, City or Town	Rye
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10580-1422
City Area Code	(800)
Local Phone Number	422-3554
No Substantive Changes, 462(c)	false
Exhibits Only, 462(d)	true
Entity Well-known Seasoned Issuer	No
Entity Emerging Growth Company	false
Business Contact [Member]
Cover [Abstract]
Entity Address, Address Line One	The Gabelli Utility Trust
Entity Address, Address Line Two	One Corporate Center
Entity Address, City or Town	Rye
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10580-1422
City Area Code	(914)
Local Phone Number	921-5100
Contact Personnel Name	John C. Ball

---